In what seems like a novel opportunity to test the limits of how far the rights covered by the Copyright Act can stretch, Catherine Alexander, the tattoo artist who inked World Wrestling Entertainment (WWE) wrestler Randy Orton, has filed a lawsuit against WWE and 2K Games. 2K Sports is the division of 2K Games, the video game publishing company, that developed the 2K series of sports games such as the WWE 2K series, NBA 2K series, and NHL 2K series of games. Alexander’s lawsuit alleges that WWE and 2K Games used her designs in a commercial manner without her consent. Alexander’s designs refer to her tattoo designs that WWE wrestler Randy Orton is covered in.
Alexander claims that the video games featuring Orton contain exact replications of multiple tattoos, including a tribal tattoo that she placed on the Orton’s upper back, in the games, and that the use constitutes copyright infringement. The lawsuit, which was filed in the U.S. District Court for the Southern District of Illinois, states that Alexander has even made prior efforts to come to an agreement with the WWE before filling this suit. The complaint states that “[i]n 2009, [the] Plaintiff contacted WWE about the reproduction of Mr. Orton’s tattoos on various items for sale by the WWE. . . . WWE offered [the] Plaintiff $450 for extensive rights to use and reproduce the tattoo designs on WWE products. [The] plaintiff declined WWE’s offer.”
Alexander is a tattoo artist, and has been putting tattoos on Orton dating all the way back to 2003. She claims that her work is unique, one of a kind, and original, and therefore, making it her private property and not for reproduction or reuse without her permission. Since then, Alexander has taken issue with the fact that multiple video games, including WWE 2K18, WWE 2K17, and WWE 2K16, have been released featuring Orton’s tattoos in a manner that Alexander says is the same or substantially similar to her copyrighted works.
This is not the first legal complaint that has been filed against 2K Games that claims copyright infringement regarding tattoo designs used in the likeness of characters in video games. In 2016, Solid Oak Sketches filed a lawsuit against 2K Games for the use of several tattoo designs that are on the bodies of NBA athletes. At the end of 2017, LeBron James’ tattoo artist filed a separate lawsuit against 2K Games based on alleged copyright infringement of his “Gloria” tattoo, his “Lion Design” and his shoulder stars.
There does not seem to be any real legal precedent established regarding photo-realistic digital copies of tattoos used in video game likenesses, but earlier this year, a lawsuit involving NBA 2K has proceeded to a judge. It would be reasonably to assume that due to the similarities between this lawsuit and the NBA 2K lawsuit, the holdings on both lawsuits will be very similar, regardless of however the judge may rule.